CIVIL PROCEDURE CLASS 16
Professor Fischer
Columbus School of Law
The Catholic University of America
Sept. 28, 2005
NON-COMPLIANCE WITH
FRCP 11(b
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FRCP Rule 11(c )
Attorney, law firm and/or party may be
SANCTIONED!
Sanctions are discretionary
RULES FOR SANCTIONS
MOTIONS
Separate motion 11(c)(1)(A)
 SAFE HARBOR RULE
 Sanctions motions must allege with
specificity the alleged violations of Rule
11(b)
 Winning party may be awarded costs
of sanctions motion 11(c)(1)(A)
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COURT-INITIATED
SANCTIONS
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If the court believes that Rule 11(b) has
been violated, what is the procedure?
Does the safe harbor apply to court-initiated
sanctions?
PLEASE NOTE: court-initiated sanctions are
relatively rare and reserved only for
grievously offending conduct similar to
contempt of court
SANCTIONS
Policy of deterrence
 Types of sanctions
 Limits on monetary sanctions
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PROGRESS FEDERAL SAVINGS
BANK v. NATWEST
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What is the court’s reasoning on
sanctions in this case?
THE BIG PICTURE
Pleading
 Joinder
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JOINDER OF CLAIMS AND
JOINDER OF PARTIES
Which rule(s) govern these?
 Is it easier to join claims or parties?
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LIMITS ON JOINDER
General policy of FRCP- liberal joinder
rules BUT
 Other rules may limit joinder. What are
some examples?
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FRCP 18: JOINDER OF
CLAIMS
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ISSUE: What claims can a party bring
against another party in the same
action?
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Can a party bring unrelated claims
against another party in the same
action?
APPLICATION OF FRCP 18
FRCP 18 applies to:
 P v. D
 Third-party P v. Third-party D
 D1 v. D2
 D v. P
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FRCP 18: PERMISSIVE OR
MANDATORY?
MUST a P bring all unrelated
claims against D in a single action?
(please forget about counterclaims
for now)Why?
 Important Note: related claims
may be barred by claim preclusion.
We’ll learn about this later.
 Another Important Note: Court can
order separate trials under FRCP
42(b)
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JOINDER OF PARTIES
Some parties MUST be joined (FRCP
19)
 Other parties may be joined if
permissive joinder rules apply (FRCP
20)
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Kedra Case CB
Could all the Kedras be joined as Ps along
with the Rozanskis?
Could all the defendants be joined in the
same action?
Why or why not?
PERMISSIVE JOINDER: FRCP
20
Parties are generally “masters of their
claims”
 ISSUE: When can P sue together?
 ISSUE: When can P sue several Ds
together in the same action?
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WHEN CAN Ps SUE
TOGETHER?
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IF:
1. Claims arise out of same transaction
and occurrence or series of transactions
or occurrences AND
2. Common question of law or fact
subject to discretion of court to deny
joinder where JURY CONFUSION or
UNDUE DELAY (20(b))
NOTE SUPPLEMENTAL JURISDICTION
RULES MAY AFFECT THIS- WE WILL
DISCUSS LATER
WHEN CAN P SUE MULTIPLE
Ds IN SAME ACTION?
IF:
 1. Claims arise out of same transaction
and occurrence or series of transactions
or occurrences AND
 2. Common question of law or fact
 subject to discretion of court to deny
joinder where JURY CONFUSION or
UNDUE DELAY (20(b))
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RULE 20 IS PERMISSIVE
Parties are not required to be joined
(subject to FRCP 19)
 However, courts sometimes
CONSOLIDATE actions (FRCP 42(a))
where they share common questions of
law or fact
 Courts also have discretion to deny
joinder and order separate trials (FRCP
20(b))
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FRCP 21: MISJOINDER OF
PARTIES UNDER RULE 20
Misjoinder will not result in dismissal
 Parties can be dropped (severed) or
added
 1. On motion of parties
 2. Or at initiative of court
 AT ANY STAGE OF THE ACTION
(subject only to need to protect parties
from unfair prejudice)
 COURT HOWEVER CAN ORDER
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FRCP 19: COMPULSORY
JOINDER
Some parties MUST be joined
 Class actions are an exception:
19(d)
 Old distinction:
 A. Necessary parties - should join
if feasible BUT failure to join will
not result in dismissal of action
 B. Indispensable parties - MUST
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RULE 19(a): WHO MUST BE
JOINED IF FEASIBLE?
Parties w/overlapping interest in
property: 19(a)(2)(ii)
 Persons with an interest that the action
may legally/practically impair :
19(a)(2)(i)
 Persons who, if not parties to action,
make it impossible for court to grant
complete relief to existing parties:
19(a)(1)
 As a general rule parties to a contract
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HOW DOES A PARTY CHALLENGE
A PARTY’S ABSENCE UNDER RULE
19?
Opposing party can move to dismiss
(Rule 12(b)(7) motion
 Is failure to join an indispensable party
under 12(b)(7) a waivable defense?
 Court can also order joinder sua sponte
- at trial or on appeal.
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CONSEQUENCES OF FAILURE TO
JOIN AN ABSENT PARTY WHO
SATISFIES 19(a)
Party must be joined if feasible
 Court will order joinder if feasible court will not initially dismiss action for
misjoinder
 What if it is not feasible to join that
party?
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FRCP 19(b): WHERE JOINDER
IS NOT FEASIBLE
Joinder might not be feasible because it
would defeat diversity jurisdiction, or
court can’t obtain personal jurisdiction
over the absent party or absent party
has a valid venue objection
 In this case, what should the court do?
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FACTORS THE COURT TAKES
INTO ACCOUNT UNDER 19(b)
1. Potential prejudice of proceeding
wihtout a person e.g. inconsistent
judgments
 2. Possibility of avoiding adverse
consequences by shaping relief
 3. Adequacy of judgment in person’s
absence
 4. Availability of another forum where P
can get relief
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ADDING ADDITIONAL CLAIMS
BY COUNTERCLAIM/CROSSCLAIM
SEE FRCP 13
 These are additional claims made by
parties to the action
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COUNTERCLAIMS
What is a counterclaim? What
provisions of the FRCP govern
counterclaims?
 What are the two kinds of
counterclaims?
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